16 / 04 / 2018

Tier 1 Investors and Entrepreneurs are urged to closely monitor all of their overseas travel in the light of strict new Home Office guidance on permitted absences.

From 11 January 2018 the Home Office have changed the way absences from the UK are calculated for the purposes of indefinite leave to remain. The changes are likely to impact hardest on frequent travellers who have Tier 1 Investor or Entrepreneur status as well as their family members.

Tier 1 Investors and Entrepreneurs may be eligible to apply for indefinite leave to remain in the United Kingdom after residing here with the relevant immigration status during a qualifying period of 5 years (with accelerated options available for higher levels of investment or turnover). During this time the main applicant is expected to be continuously resident in the UK. The Home Office have historically taken a relatively relaxed view of the meaning of continuous residence allowing absences of up to 180 days in each of the five years.

The relevant beginning and end of the year was calculated backwards from the date of the application for indefinite leave to remain, allowing applicants to frame the timescale in the most favourable manner for their applications. So, for example, by careful timing of the application a long period of travel of 190 days could be split over two consecutive years to ensure that the each of the respective years was below the permitted maximum of 180 days.

But with no consultation the Home Office have changed the policy with retrospective effect. Now absences of up to 180 days are permitted on a rolling year basis. Applicants will need to ensure, therefore, that at all times their overseas travel does not exceed 180 days in any 12 month period with no opportunity to even out absences over consecutive years.

Whilst the policy will effect a number of different immigration categories it is usually Tier 1 status holders that travel most frequently and for long periods. Travellers are urged to plan future travel carefully to ensure that the rolling year basis is used going forward. But of more serious concern is the inability to adjust for historic travel. If a Tier 1 Investor has a long single absence of more than 180 days in year two of a five year stay this will not be regarded as breaking continuity for the purpose of obtaining indefinite leave to remain. The five year qualifying period would start again from day 1 on the return to the UK after the long absence and the Investor will therefore need to live in the UK for up to seven years before becoming able to apply for indefinite leave to remain.

In a parallel move, the Home Office have also begun to enforce residency requirements for the spouse of the main applicant, which may mean that partners and dependent children are deprived of the opportunity to obtain indefinite leave to remain.

Historically it has been the case that provided the main applicant met the residence criteria for indefinite leave to remain the same status would be granted to any family members living within them in the UK if they had dependent immigration status as either the spouse or children.

But in a move to tighten control further, any spouses who obtain dependent status after 11 January 2018 or who extend their status with a new application beyond that date will also be required to demonstrate that they have not been absent for more than 180 days in any 12 month period.

Whilst the rule does not have retrospective effect, it only applies to absences which happen after an immigration application made on 11 January 2018 or later, this will have significant implications for spouses who split their time between more than one home.

The double damming effect of this is that whilst children are not expected to meet the same residence criteria they will only be granted indefinite leave to remain if both of their parents are being granted indefinite leave to remain at the same time – thus if the spouse does not qualify for indefinite leave to remain the children will also be deprived of the status.

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